DOI: 10.25136/2409-7136.2017.9.23950

Abstract: The idea of limitation immanently exists within law as one of social regulators of relations within society. The very fact that people should coexist, presupposes the necessity to take into account mutual interests, therefore dialectical categories of freedom and necessity and the related manifestations of freedom and limitations in law were studied by philosophers and legal theorists. The research subject of the present article is free use as an example of the institution of limitations of subjective civil rights with respect to exclusive right. The author considers the current legislation of the Russian Federation and foreign countries, legal positions of Russian courts and courts of foreign jurisdictions. The author considers the scholars’ positions on the issues of limitations of rights and title encumbrance. The research methodology is determined by the specificity of the research subject. It includes the set of general scientific research methods (analysis, synthesis, comparison). The author concludes that an exclusive right is always seen as limitless, and any limitations of right and title encumbrances (free use, exhaustion, compulsory license, prior user right and right of use after patent expiration) should be proved and can’t be interpreted broadly. Free use understanding in the legislation of the countries of Continental Europe differs from understanding in the countries of common law containing the “fair dealing” and “fair use” doctrines. However, the “fair dealing” doctrine, acting in Great Britain, Australia and Canada, presupposes the formalized list of actions, which are classified as faithful (free) use of objects of exclusive rights without author’s (or another rightholder’s) permission. To certain extent, it is akin to free use understanding within the Civil Code of the Russian Federation and legislation of other countries of Continental Europe. Besides, there’s a similarity of free use within the intellectual property institution with public easement as a limitation of property right. In this context, free use is considered by the author as a limitation of right rather than title encumbrance. 

DOI: 10.25136/2644-5514.2017.4.24451

Abstract: All subjective civil rights are susceptible to limitations, especially it is relevant for the institution of “intellectual property”, in which the desire to ensure compromise between the interests of an author (rights holder) and the interests of society, engaged in free access to the results of intellectual work for the purpose of  cultural and technological development, is manifested most vividly. One of the results of balancing the interests within the intellectual property law, have become the constant expansion of various restrictions and limitations, primarily of the property rights of the authors (rights holders). This article discusses the questions of restrictions of the subjective civil rights applicable to exclusive right on the example of issuing a compulsory license. The author reviews the acting legislation of the Russian Federation and foreign countries. The following conclusions were made: all subjective civil rights are susceptible to limitations, which is especially topical for the institution of “intellectual property”; restrictions and limitations of right (free use, exhaustion, compulsory license, and rights of “prior and posterior” use) must be proven and cannot be subjected to extensive interpretation. A national patent law system concerning the granting of compulsory licenses is determined with reference to various objects of exclusive rights. The issue of compulsory licenses is possible in respect to the interests of private entities and public formations, including the purposes of healthcare and health protection that is particularly relevant for the developing countries. The compulsory license in the Institution of Intellectual property has similarities with the servitude as limitation of property rights, and is considered by the author as the limitation, rather than restriction of exclusive right.